X School v SP & Anor

For disability discrimination claims arising from exclusion, a reason relates to a disability where there is an appropriate relationship between the reason for the treatment and an aspect of the disability. The disability need not be the sole cause, or a cause without which the conduct would not have occurred.

Where exclusionary treatment is disability-related, justification must be assessed in the round. If the responsible body failed to make reasonable adjustments, it must show that the treatment would still have been justified had those adjustments been made. A tribunal may require systematic strategies, professional advice and staff training where those steps could prevent repeated exclusions.

The governing body of a maintained secondary school appealed under section 11 of the Tribunals and Enquiries Act 1992 against a decision of the Special Educational Needs and Disability Tribunal. The Tribunal had found that the school unlawfully discriminated against N, a pupil with ADHD, by imposing four fixed-term exclusions.

The appeal challenged the Tribunal’s findings on causation, procedural fairness, justification, reasonable adjustments and remedies. The central issues were whether N’s conduct was related to her disability, whether the exclusions were justified, whether reasonable adjustments could have avoided them, and whether the Tribunal’s remedial orders were lawful.

1. Appeal dismissed. The Tribunal had committed no error of law. Its findings that the exclusions were disability-related and unjustified were open to it on the evidence.

2. Applying London Borough of Lewisham v Malcolm [2007] EWCA Civ 763, the relevant inquiry was whether there was an appropriate relationship between the reason for the exclusion and N’s disability. The disability did not have to be the sole cause of the behaviour, or a cause without which the behaviour would not have occurred. The Tribunal was entitled to find that the conduct leading to the exclusions formed part of N’s ADHD, having regard to the medical and educational evidence.

3. The Tribunal’s reliance on research evidence not expressly raised at the hearing was unfortunate. However, the evidence had been used only to support a finding independently supported by other material. Applying the fairness principle stated in In Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 and Richardson v Solihull Metropolitan Borough Council [1998] ELR 319, no substantial wrong or miscarriage of justice had resulted.

4. Justification had to be assessed in the round, including the interests of the school and the disabled pupil. The school had used strategies only piecemeal, had not sufficiently analysed N’s good behaviour, had not obtained professional guidance for that purpose, and had not formulated a systematic plan. The Tribunal was entitled to conclude that, had reasonable adjustments been made, the repeated exclusions would not have been justified. Repeated short exclusions could be penal in character and could exacerbate the pupil’s difficulties.

5. The Tribunal was entitled to order an apology, training and a note on N’s school file. The school had had an opportunity to address remedies, and the orders were sufficiently connected with the discrimination found. The deadlines were varied: the apology and file note were to be completed by the start of the summer term 2008, and the training by the end of that term.

The appeal was brought from a decision of the Special Educational Needs and Disability Tribunal finding unlawful discrimination arising from four fixed-term exclusions. The High Court dismissed the appeal and varied only the deadlines for compliance with the remedial orders.